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Hear No Evil By: Matthew Continetti
The Weekly Standard | Tuesday, February 26, 2008


On February 16, last year's bipartisan legislation governing the collection of foreign intelligence and protecting from liability all persons who comply with federal directives to assist in such collection--the law otherwise known as the "Protect America Act of 2007"--expired, having exhausted its six-month, 15-day statutory lifespan. At which time the federal government's ability to pursue suspected terrorists and emerging threats was dealt a serious blow. You can thank House Democrats for the whole sorry mess.

The Democratic leadership denies this, of course, having adopted an Alfred E. Neuman "What, Me Worry?" approach to national security. The lack of a new statute "does not, in reality, threaten the safety of Americans," protests Senate majority leader Harry Reid. The Foreign Intelligence Surveillance Act of 1978 still applies. Says Senator Richard Durbin of Illinois, "The FISA law--even if we do not change it--gives ample authority to this president to continue to monitor the conversations of those who endanger the United States." Says House Intelligence Committee chairman Silvestre Reyes: "We cannot allow ourselves to be scared into suspending the Constitution." Democratic national-security-adviser-in-waiting Richard Clarke writes that "FISA has and still works as the most valuable mechanism for monitoring our enemies."

It is true that the wiretaps granted under the Protect America Act may be continued for a year from their date of issue. If a wiretap was approved on December 5, 2007, for example, it legally can remain in place until December 5, 2008. But any new wiretaps the government seeks will have to go through stringent FISA procedures, which require the government to show "probable cause" that a "U.S. person" is a "foreign power" or an "agent of a foreign power" before a search warrant targeting him can be issued. And this is troubling because--pace Richard Clarke--the old FISA didn't and doesn't work.

Let's review what brought us to this impasse. Back in December 2005, the New York Times reported that, "months after the Sept. 11 attacks," President Bush "secretly authorized" the National Security Agency (NSA) to "eavesdrop on Americans and others inside the United States" in order to gather intelligence "without the court-approved warrants ordinarily required for domestic spying." Now, the NSA's Terrorist Surveillance Program wasn't so secret, it turns out; select members of Congress, Democratic and Republican, had been informed of its existence long before the Times's blockbuster report, and none of them seemed to have had a problem with it.

It turns out, further, that the NSA wasn't spying on Americans willy-nilly. Most of the warrantless surveillance targets were foreign nationals located overseas, though the program also surveilled the 500-odd people in the United States with whom those overseas targets were communicating. Nor was it at all clear whether or not FISA superseded the president's plenary, constitutional authority to "protect and defend" the United States from attack. No court has ever said so. And no administration, including Carter's and Clinton's, has ever accepted FISA as determinative of its constitutional power.

But that didn't matter. Congressional Democrats called the program "illegal." For a while, the president fought back, but 2005 turned into 2006, the year the Democrats took Congress. The Bush administration was weak. And so, for better or worse--okay, for worse--the president decided he was no longer in a position to engage in a public assertion of executive authority. The process was submitted to the authority of the FISA court and its 11 rotating judges. And it was only a matter of months before the system began to degrade.

The FISA court decided that calls or emails merely routed through the United States were, in fact, domestic communications falling under the "probable cause" evidentiary standard. It didn't matter that the target and the recipient of his communications might both be abroad--if the electrons zipped across the United States, as they often do in a globally networked world, then a warrant was required to listen in. By the miracle of technology, Abu Omar and Mullah Mohamed in Pakistan could both be "U.S. persons." Meanwhile, the ACLU and the tort bar filed lawsuits against the telecommunication companies that had cooperated with the U.S. government in the Terrorist Surveillance Program. Naturally, the telecoms, fearing that they soon would be paying damages, grew wary of cooperation with the government. And some of the FISA judges--the same folks often accused of "rubberstamping" the executive's wishes--raised the bar that needed to be met before counterterrorist surveillance could begin. Director of National Intelligence Mike McConnell recently told Fox News Channel's Chris Wallace that by summer 2007, "We were in extremis, because we had lost ... about two-thirds of our [surveillance] capability."

It was this crisis that the Protect America Act addressed. It was by no means a perfect bill. It expanded the FISA court's authority by allowing it to retroactively review the surveillance programs--submitting national security decisions to an unelected and unaccountable judiciary--and also by requiring the president to disclose to the court on a regular basis the program's activities. But the Protect America Act did contain two important provisions. It formalized the administration's authority to conduct overseas wiretaps on foreign nationals without court approval, and it granted immunity from further lawsuits to the telecoms. Under the compromise, data collection could proceed without too much trouble. Until said compromise expired on February 16.

That's the history.

It was not for lack of trying that the Protect America Act died earlier this month. A bipartisan, two-to-one majority in the Senate voted for a new law that would renew the act's provisions, provide retroactive immunity to the telecoms that had participated in the Terrorist Surveillance Program, and even extend FISA warrant requirements for overseas targets who are Americans, evidence of the Bush administration's willingness to bend over backwards in search of a compromise. A bipartisan majority in the House is ready to vote for this law. No one disputes that these surveillance programs are necessary to prevent terrorist attacks upon the United States.

At issue is the so-called "retroactive immunity." The House Democratic leadership doesn't like it. Most of their arguments against retroactive immunity aren't any more sophisticated than Senator Edward Kennedy's disgusting assertion that President Bush is "willing to let Americans die to protect the phone companies." But the crux of the anti-immunity Democrats' argument seems to be that because the original Terrorist Surveillance Program was "illegal" and the phone companies were complicit in its "illegality," they therefore should be liable for damages resulting from such "illegal" invasions of privacy.

This is wrong on all counts. The Terrorist Surveillance Program was not illegal. And the telecoms were engaged in a good-faith effort to help the federal government protect the United States from attack. Isn't that how we should want corporations to behave in a time of war?

In the end, the fight over retroactive immunity may be something of a distraction. Even if the "more than 40" pending lawsuits we hear about went to trial, we're guessing the government and the telecoms would prevail. Just last week, the Supreme Court denied the ACLU's appeal of a Sixth Circuit ruling that the group and its co-plaintiffs lacked standing to sue because they could not prove harm. The Ninth Circuit last year ruled similarly against an Islamic charity that alleged the NSA was listening to its communications. No harm, no standing, no damages. It's unlikely the tort bar would profit much.

But the Democrats' lawyer friends have already wreaked a lot of havoc. The mere threat of such lawsuits is enough to make some phone companies think twice about helping the government. And maybe that's the point. The fight over retroactive immunity should be seen for what it is: a backdoor attempt to shut down the president's post-9/11 intelligence gathering efforts and return the intelligence community to a pre-9/11 footing, when the FISA court governed almost all counterterrorist surveillance and the standards of traditional law enforcement applied more often than not to investigations of suspected terrorists.

That is why the ACLU's website wants you to "tell House leaders" to "keep standing up to Bush" and thank Nancy Pelosi and Steny Hoyer for "standing up" to Bush's "bullying" and letting "his reckless and unconstitutional spying bill expire." That is why the leftwing Center for American Progress accuses Bush of "spouting fear" as Congress seeks to "rein in" his "reckless disregard of the Constitution and the law." These folks don't think the telecoms are the problem. They think any law that allows the president to go beyond the writ of the FISA court is the problem.

And that's pernicious nonsense. Apolitical career types like McConnell, FBI director Robert Mueller, and attorney general Michael Mukasey, along with Democrats like Senate Intelligence Committee chairman Jay Rockefeller, agree on this. It was fear of the FISA court, after all, that prevented Minnesota FBI field agents from searching the laptop of al Qaeda terrorist Zacarias Moussaoui--the suspicious student at the Pan Am International Flight Academy in Eagan, Minnesota--even though they knew about Moussaoui's jihadist beliefs and connection to a Chechen terrorist. That was the problem which the Terrorist Surveillance Program was meant to address. It was the sort of problem that the Protect America Act was meant to mitigate. But now we are returning to the place from which we began.

Congress returns from recess this week. As we go to press, Speaker Pelosi continues to indicate she will not allow a vote on the bipartisan Senate surveillance bill. This demonstrates a fundamental lack of seriousness about national security on the part of congressional Democrats. Newsflash: The United States faces a persistent threat of attack from a terrorist organization with global reach and the desire to massacre as many innocent people as possible. Do House Democrats really want to make the terrorists' jobs any easier?



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